Unfair Labor Practices Continue to Plague Non-Union Employers

Unfair Labor Practices Continue to Plague Non-Union Employers

The Fourth Circuit called out an employer for firing an employee in violation of her rights to engage in concerted activity with other employees.  This case did not involve facebook, but like those cases, the employee’s right to share grievances with coworkers trumped an employment policy.

In NLRB v. White Oak Manor, an employee wore a hat to work to cover an embarrassing haircut.  After a few days (before the haircut had grown out enough, apparently), she was ordered to remove the hat.  She complained that others were allowed to wear hats, and that the dress code was not enforced fairly.  She was written up.  The employee still felt unfairly treated.  She took pictures of employees who wore hats without being reprimanded, and otherwise violated the company’s dress code by displaying tattoos.  She discussed the pictures, and the employer’s unequal enforcement of its rules with other employees.  The employer fired her for taking pictures.

The Fourth Circuit agreed with the National Labor Relations Board that the employee’s efforts to win converts to her side was concerted activity.  Employees griping, uniting, or discussing terms and conditions of employment all fall under protected activity, and firing them for getting together violates the National Labor Relations Act.  This includes both dress codes and discipline.  The court rejected the employer’s contentions that the employee raised the concerns and took the pictures only in her self-interest.  “Equitable enforcement of a dress code definitionally benefits all.”

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